Imagine if you filed an application to immigrate legally to a new country, and applied 10 years in advance. But just before you, your wife, and three kids were granted permission to immigrate, your oldest son turned 21. Imagine if you were told that everyone but your oldest son could not or immigrate for 10 more years, and that he couldn’t even come to visit you as a tourist during that decade! The Child Status Protection Act is a law passed by Congress several years ago, which is supposed to protect children from horror stories just like this.

In many cases, immigrant visa petitions remained pending with USCIS for years (whether I-130 family-based or I-140 business-based). The Child Status Protection Act now deducts the time a case has been delayed with the immigration service, from the age of the child, so that his or her age is “frozen” for the purposes of immigrating to the US with her or her family. (e.g. case pending 10 years, so a child who is 30 is seen as “20”).

The application of a different section of the Child Status Protection Act (CSPA) is more complicated, but so important that it makes it to our top 10 immigration fixes list: The CSPA needs to be applied to the derivative child beneficiaries of 4^th preference I-130 cases and to the derivative children of I-140 employment-based cases. The law is already in place – it just needs to be interpreted correctly and applied consistently. Class action lawsuits are currently pending against US Citizenship & Immigration Services to force them to apply the CSPA law to these cases.

The CSPA says that if the age of a beneficiary (e.g. child) is determined to be 21 or older for the purposes of a petition filed by a permanent resident, or derivative beneficiaries of employment and diversity visa petitions, “the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.” (8 USC 1152(h)(3). In “plain English”, this means that the aged-out child might not get to immigrate through the green card case sponsored by her father’s employer, but her case would “convert” automatically into a case “sponsored” by her father as soon as he became a permanent resident. 

One would think it might just be a year or two, then, before this aged-out daughter could immigrate. Unfortunately, the reality is that the sons and daughters of permanent residents have to wait 5-20 years to immigrate to the US, depending on country quotas and priority dates. For example, parents who filed cases for their Mexican son or daughter way back in 1992 are still waiting to immigrate to the USA, so age-out is very common. Keep in mind the parent himself might have already waited more than 10 years to immigrate, so it’s not like these people didn’t wait their turn in line. As a result, the Child Status Protection Act has not been protecting much! There is a simple fix however: Let the child keep the priority date of the parent’s case, since the child used to be part of that old case anyway. 

In Matter of Garcia, the Board of Immigration appeals addressed this issue. In Garcia, a US citizen brother sponsored an adult sibling. After many years, a visa finally became available, and the adult sibling was able to immigrate with her family – with the exception of the eldest daughter, who had aged-out by turning 21. The daughter was actually placed into deportation proceedings. The Board determined that the CSPA protected her. The Board said that the child’s entitlement to a visa number [green card] “does not derive from the 1997 visa petition, but rather from the original 1983 petition, which is ‘automatically converted’ to a second-preference petition upon an administrative determination that she is 21 years or older for purposes of section 203(h)(1).” So even though the woman ‘aged out’, she was able to be sponsored by her permanent resident mother using the old (1983) priority date, and didn’t need a new case filed for her in 1997. This meant that with a “priority date retention request,” she saved more than 13 years of waiting to reunite with her parents and siblings.

Here’s the kicker: this was just an “unpublished” case, meaning it doesn’t force all courts or government agencies to apply the law this way. So in some cases of aged-out children, there are horrible results – one child over 21 is allowed to immigrate, and her sibling (also over 21) is not, just because the law is applied inconsistently.  In other cases, families are filing “priority date retention requests” but the California Service Center of USCIS is ignoring them. This means that even if the priority date is retained to give an immediately available green card to the aged-out child, the case just sits there on a shelf for years waiting for someone to pick it up at USCIS. To refuse to accord proper priority dates to immigrant visa petitions is an abuse of discretion, and contrary to the CSPA provision 8 USC 1153(h)(3).

In a new class action lawsuit, the families are suing to enforce Matter of Garcia and related cases. We hope to see the BIA make a decision in the coming months, so watch out for new developments in the news. In Matter of Cuellar, we hope to see the Board of Immigration appeals force California Service Center of USCIS to review and respond to requests for priority date retention under the Child Status Protection Act, to accord the “old” priority date from the parent’s petition to the aged-out child, and to grant immigrant visas.  A top-10 immigration fix is for the Board of Immigration Appeals to make it a nation-wide standard to protect aged-out children by ordering USCIS to properly adjudicate immigrant visa petitions and grant the original priority dates in accordance with the terms of the Child Status Protection Act.

Moreover, the Board should grant stays of removal for any case where this issue is in question, to give the children of immigrants a chance to have their day in court.

Finally, in a case newly certified to the Board of Immigration Appeals (Matter of Patel), the Board should hold that it is a violation of the Child Status Protection Act to deny  original priority date retention for derivative beneficiaries of I-140 immigrant visa petitions. In other words, the CSPA should protect aging-out derivative children of employer-sponsored green card cases, not just those of family-based cases. Congress provided clear language to assist in the speeding reunification of families. USCIS’s argument that the protection of the CSPA’s statutory language is limited only to family-based cases under INA 203(h)(3) is inconsistent, especially when USCIS interprets the exact same phrase to include all family & employment cases under INA 203(h)(1).

As the Patel amicus brief states, “nothing can be more fundamental to our values than the right to family; nothing can be clearer in our jurisprudence than the plain language of Congress, and nothing can be more egregious than the refusal to abide by the rule of law.” We talk about immigrants waiting their turn in line, but the USCIS position asks these kids to leave their place in line and go all the way back to the beginning. A top-10 fix is to let these kids keep their place in line, and immigrate lawfully to join their families as Congress intended.

If you have comments regarding the CSPA pending litigation, we welcome them.